Paul Minix v. Paul Gonzales, Curtis Pitts, and Layla Wuttke--Appeal from 23rd District Court of Brazoria County

Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring Opinions filed March 3, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00344-CV

____________

PAUL MINIX, Appellant

V.

PAUL GONZALES, CURTIS PITTS, AND LAYLA WUTTKE, Appellees

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 26,901

C O N C U R R I N G O P I N I O N

The court s judgment in this case is correct, and most of its opinion is correct, but the court, in dicta, departs from precedent in the parts of the majority opinion that state a pro se inmate should be treated more favorably in civil litigation than those who are not pro se inmates:

A pro se inmate s petition should be viewed with liberality and patience and is not held to the stringent standards applied to pleadings drafted by attorneys . . . Construing Minix s petition with liberality and patience . . . .

Maj. Op. at 3 4.

First, the quoted statements by the majority are obiter dicta because they are not necessary to the court s disposition of this appeal. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex. App. Houston [14th Dist.] 1999, pet. denied). These statements are not essential because, notwithstanding the majority s reference to the stringent standards applied to pleadings drafted by attorneys, courts construe any petition liberally and in favor of the drafter, if no special exceptions have been sustained as to that petition. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Because the trial court did not sustain any special exceptions against Minix s petition, this court must construe this petition liberally regardless of whether Minix is an inmate and regardless of whether he is represented by counsel or acting pro se. See id. Construing Minix s petition liberally in his favor, there is an arguable basis in law as to his Theft Liability Act claims against Pitts and Wuttke in their individual capacities. See id., 34 S.W.3d at 897; Harrison v. Tex. Dep t of Crim. J. Inst l Div., 915 S.W.2d 882, 888 (Tex. App. Houston [1st Dist.] 1995, no writ) (holding that sovereign immunity did not justify dismissal of claims against state officials in their individual capacities). Accordingly, this court correctly reverses the trial court s judgment in this regard.

Second and more importantly, in addition to being dicta, the above-quoted statements by the majority are contrary to prior precedents from the Texas Supreme Court and from this court. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (holding that litigants who represent themselves must comply with procedures established by rules notwithstanding the fact that they are not licensed attorneys); Gaffney v. Tex. Dep t of Crim. J. Inst l Div., 2004 WL 1898488, at *3 n.7 (Tex. App. Houston [14th Dist.] Aug. 26, 2004, no pet.) (holding that pro se inmate had to comply with the normal rules for preserving charge error and stating that he would be held to the same standards as licensed attorneys and must comply with all applicable procedural rules) (mem. op.); see also Green v. Kaposta, __ S.W.3d __, __, 2005 WL 56976, at *1 (Tex. App. Dallas Jan. 12, 2005, no pet. h.) (stating pro se inmate in civil litigation must comply with same laws and applicable procedures as a licensed attorney); White v. Cole, 880 S.W.2d 292, 294 (Tex. App. Beaumont 1994, writ denied) (same as Green).

Furthermore, the line of cases cited by the majority are not part of the jurisprudence of this court or the Texas Supreme Court and are based on cases applying Federal Rule of Civil Procedure 12(b)(6). See Hughes v. Rowe, 449 U.S. 5, 9 10 n.7, 101 S. Ct. 173, 176 n.7, 66 L. Ed. 2d 163 (1980) (citing Haines v. Kerner and stating that, when deciding whether a complaint states a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), federal courts review pleadings drafted by pro se litigants under standards that are less stringent than those applied to pleadings drafted by lawyers) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 21, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972) (stating that, under federal rule of civil procedure 12(b)(6), federal courts review pleadings drafted by pro se litigants under standards that are less stringent than those applied to pleadings drafted by lawyers) (per curiam); Aguilar v. State, 68 S.W.3d 1, 1 2 (Tex. App. Houston [1st Dist.] 1997, no pet.) (stating, in a mandamus proceeding filed by an inmate, that the United States Supreme Court directs the court to seek the substance of a pro se complaint by reviewing it with liberality and patience and citing Haines v. Kerner). In Texas civil procedure, there is no analogue to Federal Rule of Civil Procedure 12(b)(6). Fort Bend County v. Wilson, 825 S.W.2d 251, 253 (Tex. App. Houston [14th Dist.] 1992, no writ). Accordingly, United States Supreme Court cases regarding the standards for reviewing pleadings under Federal Rule 12(b)(6) are neither applicable nor binding on this court.

According to the federal line of cases cited by the majority, courts should treat pro se litigants more favorably than parties represented by lawyers regarding the standards applied to their pleadings. See, e.g., Haines, 404 U.S. at 520 21, 92 S. Ct. at 596. These federal cases base this conclusion on a stated need to review pro se pleadings with liberality and patience. See id. Judges should be patient with all litigants and lawyers that appear before them. See Tex. Code Judicial Conduct Canon 3 (B)(4) (stating [a] judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . . . ). This patience should be shown to all litigants, whether represented by counsel or not, and it does not weigh in favor of treating inmates or pro se litigants more favorably. Likewise, though courts may be as liberal to litigants as possible while still being faithful to the law, this liberality does not weigh in favor of treating pro se litigants more favorably. Indeed, the Texas Supreme Court has stated that pro se and represented litigants should be judged by the same standards:

[N]o basis exists for differentiating between litigants represented by counsel and litigants not represented by counsel in determining whether rules of procedure must be followed. . . . There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel.

Mansfield State Bank, 573 S.W.2d at 184 85.

For the reasons stated, the majority s statements in dicta are contrary to Texas law. See Mansfield State Bank, 573 S.W.2d at 185; Gaffney, 2004 WL 1898488, at *3 n.7; Green, __ S.W.3d at __, 2005 WL 56976, at *1; White, 880 S.W.2d at 294. For this reason, I respectfully decline to join that portion of the majority opinion, though I concur in the court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed March 3, 2005.

Panel consists of Chief Justice Hedges and Justices Hudson and Frost. (Hedges, C.J., majority.)